R v Mohamadi [2023] NZDC 2793 (17 February 2023)

Last Updated: 24 May 2024

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.html

IN THE DISTRICT COURT AT HAMILTON I TE KŌTI-Ā-ROHE KI KIRIKIRIROA

CRI-2020-019-000924

[2023] NZDC 2793

THE KING

v

AKO ABDULLAH MOHAMADI

Hearing:	17 February 2023
Appearances:	P Noorland for the Crown T Cooper for the Defendant
Judgment:	17 February 2023

NOTES OF JUDGE B A CROWLEY ON SENTENCING

[1] Mr Mohamadi, you have earlier pleaded guilty to two charges of possessing objectionable publications. They related to a large number of such publications. From memory it was just over 700 such images and videos. As I say you admitted those charges fairly promptly. The two other charges you went to trial on were abducting a

THE KING v AKO ABDULLAH MOHAMADI [2023] NZDC 2793 [17 February 2023]

young child and sexually violating him by digitally penetrating his anus. That matter was the subject of a jury trial and the jury found you guilty on both of those charges.

[2] The sentencing exercise I have to undergo is made considerably easier by the responsible attitude taken by both counsel. It is unusual for counsel to agree on a starting point. I read the Crown’s submissions first because I only received your lawyer’s submissions this morning. I recall when I read them thinking it was unlikely that your lawyer would take much issue with the starting point proffered by the Crown and that has been the case.

[3] The offending was that you abducted this boy by taking him in your car. You brought him some food. You took him to another place which was more secluded saying that you wanted to take photos of him, offering him money, and when you got him to that secluded point you as I say penetrated his anus digitally. You then took him back to a point where he was released from you and went back to where he had been.

[4] For those two offences obviously the lead offence being the sexual violation, but the abduction being a serious aggravating feature of that offending, both counsel agree that a suitable starting point having regard to available cases is five years’ imprisonment. That puts the matter at the bottom of the second band of offending set out in a case from the Court of Appeal which deals with people who are convicted of this type of offence. I agree with counsel unsurprisingly that that is the appropriate starting point on those two offences.

[5] On the other two offences of possessing those materials counsel are agreed there must be an uplift and agree that that should be in the range of a further 12 months’ imprisonment. That leaves a global starting point of six years.

[6] Your lawyer, Ms Cooper, has filed detailed submissions and a comprehensive cultural report which the Court only received recently, but I have had time to read that yesterday evening as well as the other material put before the Court. Unusually in your case a very large number of references as to your good character, your polite, respectful and kind manner in the community, and the high regard which most people

hold you. These people speak, and they are respected people in our community, they speak wholeheartedly of their knowledge of you, of their support of you. It is, of course, moving to have your wife who was spoken to by the cultural report-writer as well write a heartfelt letter basically pleading with me to sentence you to home detention or as she says even a lighter sentence.

[7] I am not able to do that, Mr Mohamadi. I do not want to leave you in any doubt the sentence has to be imprisonment today. These charges are just too serious. I am sure Ms Cooper has been over that with you. I refer to your wife’s letter because of the support you have not only from her but from her whanau, from other members of our community, and as your lawyer is perfectly right to emphasis that not only speaks of the fact that what you have done here is something that they simply cannot explain. It makes no sense with the person they know you to be, but it also speaks of the positive prospect of your rehabilitation, that you can turn yourself around and not behave in this way anymore.

[8] The cultural report refers to your upbringing. You came to New Zealand as a refugee. You had an extremely tough time in refugee camps in other countries. I have read of that. As I said to your lawyer I am not going to go over the details of that, but you certainly suffered abuse that no child should suffer in what would have been very difficult circumstances for you anyway. When you came to New Zealand unfortunately there were other incidents which I have read about and which I accept, and you say that that in part paved the way to you becoming addicted to pornography, particularly the sorts of images that you pleaded guilty to having possession of.

[9] The Crown are right to accept the causal annexure, which is the way we say it when one thing leads to another. We can see how those previous incidents and other things that happened to you once you had come to this country put you in the position where you are now.

[10] Your lawyer says discretely there are four things I should look at when I come to reduce the sentence. The first one is the fact that you pleaded guilty to those other two charges. I have to say I struggled with that. I recall you clearly giving evidence at the pretrial hearing, I was not the Judge at your trial, I can only imagine your

evidence at trial would have been similar, you were very critical of this very young boy. You said he was trouble. You said he was a liar and you said he was just trying to get you into trouble, and you denied these charges obviously strongly on that basis.

[11] You still say to the cultural report-writer you are an innocent person. You think the jury have made a mistake. Obviously, I cannot put any weight on that. Where you sit now you are in an impossible position. If you were to say you had done these things that would be seen cynically as you simply trying to get some benefit. You are saying I stand by what I said at trial. Obviously, I cannot give you any credit for any remorse. You cannot feel remorse for something you say you did not do, but I respect your position and you have not changed in what you have said. I have to abide by the jury’s decision. I am sure you understand that.

[12] In the end I think that the appropriate thing is to give you a credit of about 15 per cent for guilty plea but that would only relate to those two charges. I think that should come off the 12 month addition to your sentence, rather than coming off the entire sentence. That would bring a reference point down to roughly 70 months.

[13] Three further matters referred to by your lawyer are firstly your previous good character. That is really squarely a submission about the letters I have received. Again I have struggled with what credit to give you for that. Those people do not know what you have done. That is not the person they know. It seems that there is something about you that is doing things that is not the person that these people would ever imagine you doing. I am prepared to give you a small benefit for prior good character of only 5 per cent. That would relate to about three and a half months of the 70 months.

[14] The matters referred to about bail, your lawyer says you have been on bail for a long time before you were remanded in custody and you should get a credit for that. Usually the Act speaks of electronically monitored bail receiving a discount, but in these situations I can think of no reason why you should not get a credit because you were on restrictive conditions of bail. There is no evidence that you ever breached those conditions of bail. I think a reduction of 15 per cent or a further 10 and a half months’ imprisonment would be appropriate for that.

[15] Finally, I turn to the matters referred to in the cultural report. I have outlined them briefly already. I have read a great many cultural reports, Mr Mohamadi, and they often speak of trauma and appalling circumstances which lead to people committing offences. It makes them no less moving. It makes them of no less impact. Yours had an impact on me as so many do. I would give you a reduction at the maximum your lawyer is suggesting of 20 per cent for that.

[16] The overall credit I give you is of 40 per cent or 28 months from that 70 month amended starting point. That leads to an end sentence of 42 months or three and a half years’ imprisonment. That is the sentence I impose on you.

[17] I record that you are to be registered on the Child Sex Offender’s register for life. I am grateful to counsel for confirming that position.

Judge BA Crowley

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 24/02/2023